White v. Mitchell

• Decision Date: 15 January 1903
• Citation: 30 Ind.App. 342,65 N.E. 1061
• Parties: WHITE v. MITCHELL et al.
• Court: Indiana Appellate Court

30 Ind.App. 342

65 N.E. 1061

WHITE

v.MITCHELL et al.

Appellate Court of Indiana, Division No. 2.

Jan. 15, 1903.

Appeal from circuit court, Vigo county; Finley A. McNutt, Special Judge.

Action by William H. White against Charles W. Mitchell and another. From a judgment for defendants, plaintiff appeals. Affirmed.John O. Piety and Sawyer & Mullikin, for appellant. S. B. Davis, S. M. Reynolds, G. M. Davis, A. M. Higgins, and A. G. Cavins, for appellees.

ROBY, C. J.

Separate demurrers by appellees were sustained to appellant's amended complaint, and he appeals from a judgment rendered against him upon his refusal to further plead.

The correctness of the result depends upon the construction given to article 5 of the written contract alleged to have been executed by the parties, and of a certificate given by the architect therein referred to, under which the appellant claims to have terminated the employment of the contractor (appellee Mitchell), and to have finished the work himself, bringing this suit against said contractor and his bondsman, the surety company seeking thereby to recover the difference between the contract price and the actual cost of construction as shown by the second certificate of the architect, and, in addition thereto, a further sum of $5 per day as liquidated damages for each and every day the building remained incomplete after the time fixed for its completion. The suit is not brought generally to recover damages suffered on account of an alleged breach of contract, but depends upon the stipulations of the written contract. It is averred in the pleading that the contractor, prior to the making of the architect's certificate, hereafter set out, had failed to comply with his agreement in five separate and important particulars specified, and that he had failed and refused to remedy the deficiencies alleged, although notified thereof by the architect. The contract, a copy of which is filed with the pleading, is said to be that adopted and recommended for general use by the American Institute of Architects and the National Association of Builders. Article 5 thereof is as follows: “Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect, or failure being certified by the architects, the owner shall be at liberty, after two days' written notice to the contractor, to provide any such labor or material, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and, if the architects shall certify that such refusal, neglect, or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work, and to enter upon the premises, and take possession, for the purpose of completing the work comprehended under this contract, of all materials, tools, and appliances thereon, and to employ any other person or persons to finish the work and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor, but, if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or finishing the work, and any damages incurred through such default, shall be audited and certified by the architects, whose certificate thereof shall be conclusive upon the parties.” The certificate relied upon as authorizing the termination of the contract in accordance with the provisions of the article quoted was as follows: “Terre Haute, Ind., April 12, 1899. Mr. W. H. White, Terre Haute, Ind.-Dear Sir: You are hereby notified that upon examination and inspection the brickwork, ironwork, and woodwork done, being done, and performed by Charles W. Mitchell under your contract with him under date of the 12th day of January, 1899, for the construction of a brick building on your premises located on the northwest comer of Fifth street and Wabash avenue, in the city of Terre...